Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.2. Functions and characteristics of preparatory meetings in litigation
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11.2.1. The primary function of the preparatory meeting is to deal with the admission of guilt

11.2.1. The primary function of the preparatory meeting is to deal with the admission of guilt

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The main motivating factor for the possible confession of the accused in the preparatory sessions is the so-called “moderate motion” of the prosecution representative, in which he foresees less severe legal consequences for the accused in case of confession.1 It should be noted that, unlike a plea bargain, the determination of this motion is not preceded by any prior consultation, so that the content of the motion is not known to the accused until much later (e.g. after service of the indictment) or directly at the preparatory hearing.2 What is certain is that the willingness of the accused to confess depends to a large extent on the content of this motion (e.g. the prospect of a lighter sentence), which the prosecution usually indicates in the indictment, but it is not excluded that it is (directly) presented at the beginning of the preparatory session. The latter practice, however, is not appropriate for the realisation of the cooperation of the prosecution (see confession).

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would note that a “moderate motion” is not mandatory, but in this case the prosecution essentially “forfeits” the possibility of influencing the imposition of a sentence. Moreover, it may be that the motion gives the defendant virtually no benefit, and therefore it is simply not worth a plea. In such a case, it is primarily for the defence to consider the likely chances at trial and, in this context, to advise the defendant on whether to admit or deny.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the accused admits his guilt and waives his right to trial in the case covered by the admission, the court shall examine whether the accused’s guilty plea is accepted on the basis of this fact, the case file and the questioning of the accused. The subjunctive conditions for accepting a guilty plea are as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The defendant understood the nature of this statement and the consequences of his consent: this condition can usually be established, as the court, because of its duty to instruct, would otherwise have to explain the (positive) legal consequences in detail, and in the case of defendants with an authorised defence, detailed plea bargaining obviously precedes the questioning of the defendant.
  2. There is no reasonable doubt as to the defendant’s sanity and voluntariness of his confession: the court’s subjective opinion is the sole determinant of voluntariness,3 and if there is doubt as to sanity, a mental health expert must be appointed, which may be done by the court of its own motion or on the motion of the prosecutor or defence.
  3. The accused’s guilty plea is clear and is supported by the case file: the clarity of the plea can be relatively easily established by asking simple questions, but the court may draw a number of conclusions from the case file that make the clear plea inadmissible. These include the case where the admission relates to an offence wrongly classified in the indictment: for example, if theft appears to have been established instead of the taking of a vehicle, the court clearly cannot be satisfied with an admission that the vehicle was taken. It should be borne in mind that the general procedural rules apply at this stage (i.e. it is not a simplified procedure), which means that the court is still under an obligation to establish the facts.4 Erdei explains this obligation with a kind of “staggering” system: “Just as the prosecution does not necessarily consider the facts established by the investigating authority to be true, so too may the facts established by the prosecution be so in the judicial procedure. It may also be the case that the court of second instance declares a first instance decision to be based on facts which are not true and therefore overturns it. I would add that some of the acquittals are given precisely because the court is not sure of the veracity of all the facts established and therefore acquits the accused.”
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the conditions set out in points (a), (b) and (c) are met, the court shall accept the accused’s plea of guilty by order, against which there shall be no appeal. However, as this is not a final decision, the proceedings must continue thereafter for the purpose of sentencing. In this context, two sets of cases are possible:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • If the court does not see any obstacle to disposing of the case in the preparatory session: (1) the accused shall be questioned on the circumstances of the sentence; (2) after the questioning of the accused, the prosecutor, then the defence counsel, may speak; (3) the court may also deliver its judgment in the preparatory session.5
  • If the case cannot be disposed of at the preparatory session, the accused and the defence counsel may submit a motion for (1) the taking of evidence and other procedural steps not affecting the merits of the accusation and the question of guilt, and (2) the exclusion of evidence. It is important to note that in such a motion, the accused and the defence must state individually the reason for and the purpose of the motion. Accordingly, a motion to exclude evidence must state the reasons why the evidence adduced by another is inadmissible; a motion to admit evidence must state the factual basis for the evidence sought. The prosecutor may comment on the motion of the accused or the defence and may also make a motion under these rules. It should be noted that such motions to adduce evidence will obviously be rare, as they are unlikely to affect the merits of the case, given the admission of guilt. If there is no obstacle to holding the trial, the court may hold the trial immediately.6
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the case of a confession, the right of appeal is excluded on the grounds of a finding of guilt, the same facts as the accusation or the qualification. As regards the sanction imposed by the court, the basic rule is that it cannot be more severe than the “moderate” sanction proposed by the prosecution (principle of the prosecution’s liability). However, the type and level of the sanction imposed by the court – which is less severe – may in principle be subject to appeal by the prosecution.
1 At the court’s request, the prosecutor presents the substance of the accusation, indicates the evidence supporting the accusation and may also propose the sentence or measure to be imposed if the accused confesses to the offence at the preparatory hearing.
2 In this case, the admission is not based on an agreement, but on the defendant’s acquiescence to the content of the prosecutor’s motion. The legislator does not even give the accused or the defence counsel the opportunity to consult and agree with the prosecution representative on the content of the motion.
3 In this context, the judge can rely primarily on the circumstances of the case and on his or her personal experience and knowledge of people. In such cases, it is not excluded that the accused makes a false confession under the influence of a criminal act (e.g. extortion).
4 And this includes qualification issues.
5 § 504 (1)–(6) para.
6 § 505 (1)–(4) para.
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